ADVOCATES:Carter G. Phillips - for the respondentJames H. Kaster - for the petitionerJeffrey B. Wall - Assistant to the Solicitor General, Department of Justice, for the United States, as amicus curiae, supporting the petitioner

Facts of the case

On December 11, 2006, Saint-Gobain Performance Plastic terminated Kevin Kasten's employment. Mr. Kasten filed suit under the Fair Labor Standards Act ("FLSA") in a Wisconsin federal district court alleging that he was retaliated against for filing complaints about the legality of the location of Saint- Gobain's time clocks. Mr. Kasten alleges that the location of the time clocks prevented employees from being paid for time spent donning and doffing their required protective gear. Saint-Gobain motioned for summary judgment arguing that purely verbal complaints, like those made by Mr. Kasten, were not protected activity under the FLSA. The district court granted the motion and dismissed the case. On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed, holding that unwritten, purely verbal complaints are not protected activity under the FLSA.

Question

The Fair Labor Standards Act protects employees from retaliation for complaining about violations of the statute. Does the protection apply only if the complaint is in writing?

Stephen G. Breyer:

The Fair Labor Standards Act of 1938 prohibits employers from discharging or discriminating against an employee because that employee has “filed any complaint” related to the Act.

Now, the petitioner here Kevin Kasten, complained to his supervisor at work about what he saw as a violation of the Act's provisions governing working hours and later he was dismissed.

And he says that was in retaliation for having made that complaint.

The question before us here is whether the phrase "filed any complaint" applies to an employee who like petitioner Kasten made a complaint about a violation of the Act but made that complain orally rather than in writing.

The Seventh Circuit held that the phrase "filed any complaint" applies to and protects only those who filed there complaints in writing.

We do not agree.

The word file does sometimes refer to a writing but sometimes it does not.

And there are two important considerations here that are you in favor of the broader interpretation.

First, the Act was passed in the 1930s to protect the poorest of workers limiting its anti-retaliation provision to written complaints would undercut protection for those such as illiterate workers who need it the most.

Second, the Secretary of Labor and the EEOC have long taken the position that the provision protects oral complaints and we were deferred to the reasonable views of those agencies.

This is not to say that a worker can invoke the protections of the Acts simply by going around complaining.

Rather the statutory text "filed any complaint" does contemplate a degree of formality certainly to the point where the employer, the recipient, has been given fair notice that a grievance about illegal conditions as at issue, it has been lodged and he should reasonably understand that that's meant to be a serious business concern.

Saint-Gobain makes the additional claim that it should win because the Act protects only complaints made to the Government and not as here simply to a supervisor in a private firm.

Because this argument was not properly preserved however, we do not consider it.

For these reasons and those given in our opinion filed today, we vacate the judgment of the Seventh Circuit and we remand the case for further proceedings.

Justice Scalia has filed the dissenting opinion in which Justice Thomas joins in part.

Justice Kagan took no part in the consideration or decision of this case.